Mary-Clare Peak v. Forever Living Products International, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY-CLARE PEAK,
Plaintiff - Appellant,
v.
FOREVER LIVING PRODUCTS
INTERNATIONAL, INC.,
Defendant - Appellee.
No. 13-17536
D.C. No. 2:11-cv-00903-SMM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Argued and Submitted April 12, 2016
San Francisco, California
Before: D.W. NELSON, O’SCANNLAIN, and TROTT, Circuit Judges.
Appellee Mary-Clare Peak appeals a jury verdict in favor of her employer
Forever Living Products (“FLP”) in her action under the Family and Medical
Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq. The facts of this case are
FILED
APR 25 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

-- 1 of 4 --

known to the parties, and we do not repeat them here. We have jurisdiction under
28 U.S.C. § 1291.
I
Peak first argues that the district court erred by improperly refusing several
requested jury instructions. But the district court’s instructions “fairly and
adequately cover the issues presented,” and were neither misleading nor a
misstatement of the law. Brewer v. City of Napa, 210 F.3d 1093, 1097 (9th Cir.
2000). The relevant Department of Labor regulations were incorporated into the
instructions, and an explicit reference to them would have confused the jury.
Likewise, Peak’s proposed instructions concerning a request for certification of a
serious health condition were irrelevant, because this process occurs after adequate
notice of the need for FMLA leave has been given. Similarly, the court’s
instructions regarding the meaning of “serious health condition” were accurate, and
instructions regarding an employer’s duty to notify employees of the consequences
of failing to comply with its FMLA policy were unnecessary. The district court’s
exclusion of these instructions was not an abuse of discretion.
II
Peak’s next claim, that the district court erred in excluding evidence of her
sexual harassment allegations, is also without merit. Peak’s allegations were not
2

-- 2 of 4 --

probative of whether Peak provided adequate notice under the FMLA, see Fed. R.
Evid. 401, 402, and their probative value was clearly outweighed by the risk of
undue prejudice to FLP. See Fed. R. Evid. 403.
III
The district court also properly denied Peak’s motion in limine to exclude
evidence of Peak’s tardiness. Evidence of Peak’s tardiness was relevant because it
described FLP’s point of view when it terminated her, and thus whether FLP’s
actions suggested it had received adequate notice of Peak’s need for leave. By
contrast, Peak’s argument that she should have received discovery as to other
employees’ tardiness is without merit; Peak’s cause of action was for violations of
the FMLA, not disparate treatment.
IV
Lastly, Peak asserts she was unduly prejudiced by the court’s refusal to
withdraw its discovery sanction. But the district court gave Peak permission to
offer the notes into evidence and provided Peak with the opportunity to correct the
record, which she did by eliciting testimony that the notes had in fact been
produced. Moreover, Peak never moved or otherwise requested that the judge
himself acknowledge error. This claim is waived. See In re Mercury Interactive
Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010).
3

-- 3 of 4 --

AFFIRMED.
4

-- 4 of 4 --